W11. Admin Law - Lecture notes 11 PDF

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Notes for Crim 135 with Vincent Keramat...

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Administrative Law 1. Overview 

Administrative law is an area of law that regulates the government’s exercise of power in relation to individual citizens

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Although it overlaps with the Charter of Rights and freedoms, it is a separate area of law

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Administrative law is based on the notion that the government must act fairly when applying the law to citizens in an administrative context

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An administrative context exists whenever the government makes a decision affecting a particular private individual: a denial of Employment Insurance, a decision to remove a permanent resident from Canada, a denial of a building permit, and so on

2. Duties imposed on government 

There are a number of requirements that the government must follow. We will focus on some of the more important duties imposed on government, which are based on common law

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Delegation o Administrative law is based on delegation of decision-making authority o The government makes laws and authorises the relevant administrative body to implement those laws: all administrative actions have a basis in an enabling (authorizing) statute (for example, the Residential Tenancy Act authorized the Residential Tenancy Branch to resolve disputes arising out of this statute and outlines what authority the tribunal has) o However, there are some limits: 

One level of government cannot delegate its decision-making power to another level of government (this would violate the division of powers in our constitution)

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Different levels of government can, however, delegate authority to institutions created by another level of government, which is referred to as interdelegation (for example, provincial courts are authorized to apply criminal law, even though it falls under federal jurisdiction)

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There is also a presumption that decision-making bodies are not allowed to sub-delegate their authority unless expressly or impliedly authorized to do so by the enabling statute

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o Ultra Vires

 This translates to “outside of power” and means that decision-makers must stay within the authority given to them by the enabling statute  For example, if the enabling statute requires a decision-maker to consider a list of factors, the decision-maker cannot add or remove any factors when making a decision  Likewise, the enabling statute may impose certain formal qualifications on decision-makers or require a certain process to be followed, all of which are binding to decision-makers o Abuse of discretion

 Enabling statutes often authorize decision-makers to use discretion  While decision-makers are free to exercise their discretion as they see fit, there are limits  When exercising discretion, decision-makers may not:  Act in bad faith (with bad intentions)  Sub-delegate their discretion to someone else (unless permitted)  Fetter their discretion (always decide the same way without regard to the facts of each case) o Natural Justice (procedural fairness)

 Right to be heard (audi alteram partem)  The precise extent of the right to be heard depends on the nature of the matter decided (as a general rule, the higher the stakes, the more procedural protections are required) and any requirements stated in the enabling statute  The right to be heard at the very least includes: o The right to receive sufficient notice of the decisionmaking process o The right to make written submissions (oral hearings are only required if the stakes are very high)

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 Bias (nemo judex)  Procedural fairness also includes the absence of bias  Bias can exist in a number of different forms. The following have been held to create bias: o Excessive hostility (includes written hearings) o Personal relationship with one of the parties (family, friendship, etc.) o Direct or indirect financial interest in outcome o A previous involvement in the case (this can be any involvement, such as making a previous decision on the matter, contributing to the matter in some form, and so on) o Charter (Fundamental Justice)

 The Charter of Rights and Freedoms can also paly a role in administrative law through s.7: everyone has the right not to be deprived of right to life, liberty and security except in accordance with the principles of fundamental justice 

This section has been held by the courts to create procedural rights in administrative decisions

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For s.7 protections to apply, the following are required: i.

A person’s rights, liberty, or security is at stake 

security includes physical and emotional integrity

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There must be an infringement or threat of infringement of a person’s rights, liberty, or security

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Rights, liberty, or security does not apply to companies or other legal entities

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There must be no adequate administrative law protection

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The decision must be administrative in nature (see previous discussion)

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3. Enforcing administrative Law 

Jurisdiction o The review of an administrative decision by a court is called judicial review o Only Superior Courts have jurisdiction over judicial review (in BC, this is the BC Supreme Court) o Judicial review decisions can be appealed to a higher court like any other court decision

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Standard of review o This refers to the threshold at which the court will interfere with the administrative decision-making process o The threshold depends on the nature of the complaint: 

Bias: reasonable apprehension of bias (there is no need to prove actual bias)

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Exercise of discretion: reasonableness (the court will accept the exercise of the decision-maker’s discretion as long as it is reasonable)

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A finding of fact: reasonableness (the decision-maker’s decisions about the existence of facts are upheld as long as they are reasonable)

 Ultra vires: correctness (the court will make a decision as to whether the decision-maker was acting within authority – no deference is shown to the decision-maker)  For strictly procedural matters, the court will apply the relevant requirements discussed previously 

Remedy o If an application for judicial review is successful, the court will usually refer the matter back to the decision-making body on the condition that the issue complained about is corrected (remember that administrative law is about process, not outcome)

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Review Questions 1. Joe is a landlord and is filing a dispute with the Residential Tenancy Act. His case was heard by an employee of the Residential Tenancy Branch, who is acting as an arbitrator. Joe has made an application for judicial review with the BC Supreme Court on the basis that the dispute should have been resolved by the Director of the Residential Tenancy Branch, rather than an employee. Having regard to the except from the Residential Tenancy Act below, do you think he can succeed?

Director's powers and duties 9 (1) The director is responsible for the administration and management of all matters and persons appointed or retained under this Act. (2) Employees may be appointed under the Public Service Act, and the director may retain other persons, whom the director considers necessary to exercise the director's powers and perform the director's duties and functions under this Act. (3) The director may establish and publish rules of procedure for the conduct of proceedings under Parts 5 [Resolving Disputes] and 5.1 [Administrative Penalties].

Director's authority respecting dispute resolution proceedings 62 (1) The director has authority to determine (a) disputes in relation to which the director has accepted an application for dispute resolution, and (b) any matters related to that dispute that arise under this Act or a tenancy agreement. 2. In the case above, the tenant argues that she was charged too much rent by the landlord. The landlord argues that the change in rent was made by agreement after a friend of the tenant moved in. He wants to bring a witness, his wife, who was there when the verbal agreement was made. However, the arbitrator does not think this is relevant and refuses the request. Based on the except below, can the landlord succeed with a claim for judicial review?

Rules of evidence do not apply 75 The director may admit as evidence, whether or not it would be admissible under the laws of evidence, any oral or written testimony or any record or thing that the director considers to be (a)necessary and appropriate, and (b)relevant to the dispute resolution proceeding. 5

3. At the end of the proceedings of the case referred to above, the arbitrator agrees with the tenant and orders the landlord to pay back $500 worth of rent. The arbitrator also orders the landlord to renew the current lease for one more year after it expires. The landlord has asked for a judicial review of the order. Having regard to the excerpt from the Residential Tenancy Branch, do you think he can succeed?

Director's orders: breach of Act, regulations or tenancy agreement 65 (1) Without limiting the general authority in section 62 (3) [director's authority respecting dispute resolution proceedings], if the director finds that a landlord or tenant has not complied with the Act, the regulations or a tenancy agreement, the director may make any of the following orders: (a) that a tenant must pay rent to the director, who must hold the rent in trust or pay it out, as directed by the director, for the costs of complying with this Act, the regulations or a tenancy agreement in relation to maintenance or repairs or services or facilities; (b) that a tenant must deduct an amount from rent to be expended on maintenance or a repair, or on a service or facility, as ordered by the director; (c) that any money paid by a tenant to a landlord must be (i) repaid to the tenant, (ii) deducted from rent, or (iii) treated as a payment of an obligation of the tenant to the landlord other than rent; (d) that any money owing by a tenant or a landlord to the other must be paid; (e) that personal property seized or received by a landlord contrary to this Act or a tenancy agreement must be returned; (f) that past or future rent must be reduced by an amount that is equivalent to a reduction in the value of a tenancy agreement;

4. After the proceedings, the landlord finds out that the tenant was a former employee at the Residential Tenancy Branch, working as a personal assistant to the arbitrator resolving the dispute. Can the landlord use this information to challenge the decision?

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Answer Key 1. The challenge will not succeed because the enabling statute permits the Director to delegate its powers to employees. 2. While the arbitrator has discretion to decide what evidence is admissible, the witness evidence in this case is highly relevant to the dispute. The Director’s refusal of the evidence is therefore unreasonable and can be challenged by judicial review.

3. While the enabling statute permits the arbitrator to order a return of paid rent, there is no provision that allows for an extension of a lease. This part of the order is therefore ultra vires and can be challenged through judicial review.

4. There is a personal relationship between the arbitrator and one of the parties to the

dispute. This is likely to create a reasonable apprehension of bias, which is a basis for judicial review

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